[2025] KEHC 4524 (KLR)

Mwangi v Space Capital Investment Limited & another (Civil Appeal E260 of 2024) [2025] KEHC 4524 (KLR) (3 April 2025) (Ruling)

Neutral citation: [2025] KEHC 4524 (KLR)

Republic of Kenya

In the High Court at Thika

Civil Appeal E260 of 2024

FN Muchemi, J

April 3, 2025

Between

Pius Njagi Mwangi

Appellant

and

Space Capital Investment Limited

1st Respondent

John Njau Mwaura

2nd Respondent

Ruling

Brief facts 1. Coming up for determination is the 1st respondent’s Notice of Preliminary Objection dated 29th November 2024 based on the grounds that the appeal is bad in law and totally incurable as it has been filed out of time without the leave of this Honourable Court and that the appeal should be dismissed for being in contravention of Section 79G of the Civil Procedure Act.

2. Directions were issued that parties put in written submissions and the record shows that the 1st respondent complied by filing submissions on 4th December 2024. The appellant on the other hand had not filed his submissions by the time of writing this ruling.

The 1st Respondent’s Submissions. 3. The 1st respondent relies on Section 79G of the Civil Procedure Act and submits that the appellant filed the appeal out of time and did not produce a certificate of delay from the lower court to indicate that there has been any delay in the issuance of the decree. The 1st respondent further refers to the case of Nicholas Kiptoo arap Salat v IEBC & 7 Others [2014] eKLR and submits that the appellant did not approach the court and seek leave to file his appeal out of time. The 1st respondent argues that the requirement to seek leave to file an appeal out of time is a mandatory requirement which cannot be termed a technicality pursuant to Article 159(d) of the Constitution. The 1st respondent relies on the case of Malika v Registrar of Lands (Judicial Review E178 of 2023) [2024] KEHC 374 (KLR) (Judicial Review) (26 January 2024) (Ruling) cited the decision in Raila Odinga v the Independent Electoral and boundaries Commission & 3 Others [2013] eKLR and submits that the provisions of Section 79G of the Civil Procedure Act are mandatory provisions of the law and the appellant ought to have sought leave of the court to file his appeal.

The Law Whether the preliminary objection is sustainable. 4. The case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 is notorious on the issue of what constitutes a preliminary objection. The court observed thus:-…..a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.

5. Sir Charles Newbold P. stated:-A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop.

6. Similarly the Supreme Court in the case of Hassan Ali Joho & Another v Suleiman Said Shabal & 2 Others SCK Petition No. 10 of 2013 [2014] eKLR held that:-A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.

7. Further in the case of Hassan Nyanje Charo v Khatib Mwashetani & 3 Others, [2014] eKLR the court held that:-Thus a preliminary objection may only be raised on a ‘pure question of law.’ To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.

8. Evidently, a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law.

9. The 1st respondent argues that the appellant is in contravention of Section 79G of the Civil Procedure Act as he filed the instant appeal out of time without the leave of court.

10. Section 79G of the Civil Procedure Act provides:-Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.

11. The Supreme Court enunciated this principle in Salat v Independent Electoral and Boundaries Commission & 7 Others (Application 16 of 2014) [2014] KESC 12 (KLR) (4 July 2014) (Ruling) where the court held:-However it cannot be gainsaid that where the law provides for the time within which something out be done, if that time lapses, one need to first seek extension of that time before he can proceed to do that which the law requires.By filing an appeal out of time before seeking extension of time, and subsequently seeking the Court to extend time and recognize such an appeal is tantamount to moving the court to remedy an illegality. This, the court cannot do.To file an appeal out of time and seek the Court to extend time is presumptive and inappropriate. No appeal can be filed out of time without leave of the Court. Such a filing renders the document so filed a nullity and of no legal consequence. Consequently, this Court will not accept a document filed out of time without the leave of the Court.

12. It is evident that the appellant filed his Record of Appeal on 1st October 2024 before filing the Memorandum of Appeal. In the Record of Appeal there is a Memorandum of Appeal dated 30th September 2024 but it was filed as part of the Record of Appeal. The judgment the appellant sought to appeal from was delivered on 30th August 2024. Therefore by the time the appellant was filing his Record of Appeal, the statutory period for filing an appeal had lapsed. Furthermore, the appellant did not lodge an appeal but filed the whole Record of Appeal which amounts to putting the cart before the horse. The law is clear that one needs to seek leave of the court to file an appeal out of time before lodging the intended appeal. The appellant failed to comply with the provisions of the law herein.

13. It is therefore my considered view that the appeal is incurably defective as it contravenes Section 79G of the Civil Procedure Act. Accordingly, the 1st respondent’s Notice of Preliminary Objection dated 29th November 2024 has merit and is hereby upheld.

14. This appeal is hereby struck out with costs to the respondents.

15. It is hereby so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 3RD DAY OF APRIL 2025. F. MUCHEMIJUDGE